B&B owners appeal against discrimination ruling

An earlier post discussed the case of the owners of the Chymorvah Private Hotel at Marazion, Cornwall, Bull & Bull v Hall & Preddy [2012] EWCA Civ 83, in which they had been found to be discriminatory in their refusal to let a double-bed room to a same-sex couple, in a situation similar to that in the Canadian case of Eadie and Thomas v Riverbend Bed and Breakfast & Ors (No. 2) 2012 BCHRT 247. Whilst the circumstances of the refusal and the underlying religious objections were almost identical, the legislation surrounding the two events was quite different.

The couple in Cornwall has now been given leave to appeal to the Supreme Court, and whilst some reports have suggested that it ‘could rule in their favour after all’, this journalistic speculation omits the possibility that it could equally uphold the decision of the Appeal Court.

Comment

The earlier action by Stephen Preddy and Martyn Hall was backed by the Equality and Human Rights Commission, (EHRC), who are reported as stating

‘We believe that this case will help people to better understand the law around freedom of religion.  When offering a service, people cannot use their beliefs, religious or otherwise, to discriminate against others.’

Peter and Hazelmary Bull were supported by the Christian Institute, about whom their lawyer said

‘The Bulls have an absolute right to believe that extra-marital sexual behaviour is wrong and a qualified right to manifest that belief. . .  Their religious beliefs might be considered outdated and uneconomic but they are entitled to manifest those beliefs in their private hotel.’

The case has been discussed Marina Wheeler of 1 Crown Office Row, and elsewhere.  The EHRC indicate that no new arguments had been presented at the Court of Appeal, and the issue for Mr and Mrs Bull was their concern about sexual behaviour rather than sexual orientation.

Citing An Application for Judicial Review by the Christian Institute and others [2007] NIQB 66, the Appeal Court noted [at para. 24]

‘Their relevant religious belief that sexual relations outside marriage were sinful and should be reserved exclusively for married couples is they contend an orthodox religious belief worthy of recognition in a modern democratic society, [emphasis added]’

However, whilst this Judicial Review hearing affirmed [at para. 8]

‘[the] general position of the applicants, supported by the Northern Bishops, is that the orthodox belief of Christians and of the other major world religions is that homosexual practice is sinful’

and as a result Article 9 was engaged under the circumstances of case, the court noted at para.50 that the extent to which the manifestation of the belief may be limited was a different issue.

The issue before the Appeal Court in the Bulls case was stated [at para. 5] as

‘whether there were direct discrimination on an `ordinary’ reading of regulations 3(1) and 3(4) [of the Equality Act (Sexual Orientation) Regulations 2007, SI 2007/1263]; if there were, whether that reading is compatible with the European Convention on Human Rights (“ECHR”) and absent direct discrimination, whether there were indirect discrimination.’

Rafferty LJ concluded that James v Eastleigh Borough Council [1990] 2 AC 751, heavily relied upon by the Respondents, was fatal to the Appellants’ case, [at para.40], as

An homosexual couple cannot comply with the restriction because each party is of the same sex and therefore cannot marry. . . . . . . Put another way, the criterion at the heart of the restriction, that the couple should be married, is necessarily linked to the characteristic of an heterosexual orientation. There has in my view been direct discrimination by virtue of Regulation 3(1) and (3)(a) together with Regulation 4 – less favourable treatment on grounds of sexual orientation.

In view of the interest generated by this case, it is easy to forget that it relates to events on 4th September 2008 when Stephen Preddy made a telephone booking of a double bedroom for the subsequent two nights.  Since then same-sex relationships have been the subject of two consultations in England and Wales, and one in Scotland, and currently consideration is being given to a Bill of Rights (for E&W) which could further impact on these issues.  The deliberations of the Supreme Court will therefore take place against a background of conflicting public, political and religious views, and whilst the legislation upon which it will make its decision will be that in place in 2008, the judgement reached will be significant in terms of future legislation and public policy.

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